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Taxmap/pubs/p54-002.htm#TXMP2f62c411 Nonresident Spouse Treated as a Resident

Nonresident Spouse Treated as a Resident

If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a resident alien and the other is a nonresident alien, you can choose to treat the nonresident as a U.S. resident. This includes situations in which one of you is a nonresident alien at the beginning of the tax year and a resident alien at the end of the year and the other is a nonresident alien at the end of the year.

If you make this choice, the following two rules apply.

1. You and your spouse are treated, for income tax purposes, as residents for all tax years that the choice is in effect.
2. You must file a joint income tax return for the year you make the choice.

This means that neither of you can claim tax treaty benefits as a resident of a foreign country for a tax year for which the choice is in effect.

You can file joint or separate returns in years after the year in which you make the choice.

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Example 1.

Pat Smith, a U.S. citizen, is married to Norman, a nonresident alien. Pat and Norman make the choice to treat Norman as a resident alien by attaching a statement to their joint return. Pat and Norman must report their worldwide income for the year they make the choice and for all later years unless the choice is ended or suspended. Although Pat and Norman must file a joint return for the year they make the choice, they can file either joint or separate returns for later years.

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Example 2.

When Bob and Sharon Williams got married, both were nonresident aliens. In June of last year, Bob became a resident alien and remained a resident for the rest of the year. Bob and Sharon both choose to be treated as resident aliens by attaching a statement to their joint return for last year. Bob and Sharon must report their worldwide income for last year and all later years unless the choice is ended or suspended. Bob and Sharon must file a joint return for last year, but they can file either joint or separate returns for later years.

If you do not choose to treat your nonresident spouse as a U.S. resident, you may be able to use head of household filing status. To use this status, you must pay more than half the cost of maintaining a household for certain dependents or relatives other than your nonresident alien spouse. For more information, see Publication 501.

Taxmap/pubs/p54-002.htm#TXMP07b29488 Social Security   Number (SSN)

SSN

If your spouse is a nonresident alien and you file a joint or separate return, your spouse must have either an SSN or an individual taxpayer identification number (ITIN).

To get an SSN for your spouse, apply at a social security office or U.S. consulate. You must complete Form SS-5. You must also provide original or certified copies of documents to verify your spouse's age, identity, and citizenship.

If your spouse is not eligible to get an SSN, he or she can file Form W-7 with the IRS to apply for an ITIN.

Taxmap/pubs/p54-002.htm#TXMP3e9c72e1 How To Make the Choice

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following:

1. A declaration that one spouse was a nonresident alien and the other spouse a U.S. citizen or resident alien on the last day of your tax year and that you choose to be treated as U.S. residents for the entire tax year, and
2. The name, address, and social security number (or individual taxpayer identification number) of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

You generally make this choice when you file your joint return. However, you can also make the choice by filing a joint amended return on Form 1040X. Attach Form 1040, 1040A, or 1040EZ and print "Amended" across the top of the amended return. If you make the choice with an amended return, you and your spouse must also amend any returns that you may have filed after the year for which you made the choice.

You generally must file the amended joint return within 3 years from the date you filed your original U.S. income tax return or 2 years from the date you paid your income tax for that year, whichever is later.

Taxmap/pubs/p54-002.htm#TXMP16ebf019 Suspending the Choice

The choice to be treated as a resident alien does not apply to any later tax year if neither of you is a U.S. citizen or resident alien at any time during the later tax year.

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Example.

Dick Brown was a resident alien on December 31, 2001, and married to Judy, a nonresident alien. They chose to treat Judy as a resident alien and filed a joint 2001 income tax return. On January 10, 2003, Dick became a nonresident alien. Judy had remained a nonresident alien. Because both were resident aliens during part of 2003, Dick and Judy can file joint or separate returns for that year. Neither Dick nor Judy was a resident alien at any time during 2004 and their choice is suspended for that year. For 2004, both are treated as nonresident aliens. If Dick becomes a resident alien again in 2005, their choice is no longer suspended and both are treated as resident aliens.

Taxmap/pubs/p54-002.htm#TXMP3aa6e87d Ending the Choice

Once made, the choice to be treated as a resident applies to all later years unless suspended (as explained earlier) or ended in one of the ways shown in Table 1-1 on the next page.

If the choice is ended for any of the reasons listed in Table 1-1, neither spouse can make a choice in any later tax year.

Table 1-1.  Ending the Choice

Revocation	·	Either spouse can revoke the choice for any tax year.
	·	The revocation must be made by the due date for filing the tax return for that tax year.
	·	The spouse who revokes must attach a signed statement declaring that the choice is being revoked. The statement revoking the choice must include the following:
		·	The name, address, and social security number (or taxpayer identification number) of each spouse.
		·	The name and address of any person who is revoking the choice for a deceased spouse.
		·	A list of any states, foreign countries, and possessions that have community property laws in which either spouse is domiciled or where real property is located from which either spouse receives income.
	·	If the spouse revoking the choice does not have to file a return and does not file a claim for refund, send the statement to the Internal Revenue Service Center where the last joint return was filed.
Death	·	The death of either spouse ends the choice, beginning with the first tax year following the year the spouse died.
	·	If the surviving spouse is a U.S. citizen or resident and is entitled to the joint tax rates as a surviving spouse, the choice will not end until the close of the last year for which these joint rates may be used.
	·	If both spouses die in the same tax year, the choice ends on the first day after the close of the tax year in which the spouses died.
Divorce or Legal separation	·	A divorce or legal separation ends the choice as of the beginning of the tax year in which the legal separation occurs.
Inadequate records	·	The Internal Revenue Service can end the choice for any tax year that either spouse has failed to keep adequate books, records, and other information necessary to determine the correct income tax liability, or to provide adequate access to those records.

Previous Page:  Publication 54 - Tax Guide for U.S. Citizens and Resident Aliens Abroad - Filing Information Next Page:  Publication 54 - Tax Guide for U.S. Citizens and Resident Aliens Abroad - Estimated Tax Use     to find additional instances of index items.